Tuesday, September 16, 2014

Flavoring Is Legal in American Whiskey. Yes, You Read That Correctly

When people say the Federal regulations for labeling distilled spirits are confusing and complicated, they aren't wrong. It is in the nature of laws that at times they can be hard to figure out. That's why there are lawyers and law schools.

I have always believed that the only difference between bourbon whiskey and straight bourbon whiskey is aging. (All of this applies to rye whiskey and all of the other named types too.) 'Bourbon whiskey' must be aged in new, charred oak barrels, but the rules don't say for how long. After the whiskey has been in the barrel for two years, it is entitled to be called 'straight.' If you just read Section 5.22(b)(1)(i) and (iii), you would think that's the only difference, but it's not.

If you jump ahead to Section 5.23(a)(2), you will find that "there may be added to any class or type of distilled spirits, without changing the class or type thereof, (i) such harmless coloring, flavoring, or blending materials as are an essential component part of the particular class or type of distilled spirits to which added, and (ii) harmless coloring, flavoring, or blending materials (HCFBM) such as caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Director, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 2 ½ percent by volume of the finished product."

In theory, then, such coloring and flavoring as described above which is not permitted in straight bourbon whiskey or straight rye, etc. is permitted in products just labeled 'bourbon whiskey' or 'rye whiskey,' without the 'straight.'

This came up because Templeton Rye has revealed to Mark Gillespie that their product, labeled as rye whiskey, contains flavoring pursuant to Section 5.23(a)(2). This is done, they say, to make the taste of their MGP-distilled rye more like the original Prohibition-era drink upon which their product is based.

Templeton's Scott Bush and Keith Kerkhoff gave Gillespie a wide-ranging interview on his WhiskyCast program last week. If you are interested in this subject it is worth a listen to hear their side of the story we wrote about two weeks ago here. The interview begins at 18:30 and runs about 20 minutes.

Just to be crystal clear, nothing can be added to straight bourbon or straight rye without changing the class. That is why Jim Beam's Red Stag, for example, is classified as 'Kentucky Straight Bourbon Whiskey Infused with Natural Flavors.' It's not straight bourbon, it's straight bourbon 'with,' which is a different classification.

Just because a whiskey is classified as 'bourbon whiskey,' without the 'straight,' that doesn't mean it does contain flavoring or coloring, just that it may under 5.23(a)(2), except for one thing. In the case only of bourbon, but not rye and the others, TTB does not recognize any use of HCFBM as being 'customarily employed in accordance with established trade usage.' Therefore, no additives in bourbon or straight bourbon are permitted unless TTB changes its mind about what's customary.

(Note: the paragraph above was edited on February 21, 2015 to reflect a statement received from TTB that can be found in the comments below. What took so long? It didn't seem warranted at first, but then it did.)

Another obscure rule says mixtures of straight bourbon are considered straight bourbon, but only if all of the components were distilled in the same state. Mixtures of bourbon made in different states must be labeled 'bourbon whiskey' and not 'straight bourbon whiskey,' even if all of the components are straights. Since age statements are required if the whiskey is less than four years old, you shouldn't need the word 'straight' to determine the product's age. Unfortunately, that's another rule currently experiencing lax enforcement.

Although the rules tell you what you must disclose, you can always disclose more voluntarily. Consumers who are really into whiskey want to know every true fact you are willing to reveal, so why not reveal all of them?

For most of modern history, none of this was an issue. Most American whiskey producers made the same things; straight bourbon, straight rye, corn whiskey, blended whiskey, and that was about it. The rules for many other types of whiskey existed but were rarely used. Today, micro-distillers especially but also the big producers are making all sorts of things, sometimes governed by different rules.

32 comments:

Everyone has trouble keeping up. In a 9/15 tweet, Fred Minnick posted a photo of a Bulleit Stitzel-Weller Experience sign under the heading"WHAT IS BOURBON", erroneously stating that bourbon has to be "aged at least two years in new charred american white oak barrels" (the two year and american white oak parts are wrong, as Fred notes).

However, the third bullet goes:"Only pure water can be added - NO coloring or flavoring" - which is obviously wrong, to the point of your post.

If I didn't know what a narcissistic pompous ass the author has proven himself to be in various online forums, I would totally buy a copy. Thankfully, he's not the only kid on the block in the bourbon world. I'd rather pirate a copy before supporting this guy's ego.

This is an issue that I don't think is totally clear. Your post is exactly correct in that the regs say coloring and additives can be added to any whiskey unless it is labeled straight, but the TTB's Beverage Alcohol Manual includes a chart on additives (Chapter 7) which shows that while additives can be added to other non-straight whiskeys, no additives can be added to any bourbon.

Of course, the regs should prevail over the BAM, which is just an interpretive guide, but I gather the BAM is what they use internally, so it may be that is their enforcement of the regs, though it seems wrong.

It would be worth giving a call to the TTB and asking exactly how the interpret the use of additives in non-straight bourbon.

Also, you say, "mixtures of bourbon made in different states must be labeled 'bourbon whiskey' and not 'straight bourbon whiskey,' even if all of the components are straights." But there is a designation for a mixture of straights from different states: A Blend of Straight Bourbons (or rye or whatever), though, to make matters more confusing, a blend of straight whiskeys can include additives.

Templeton rye left a bad taste in my mouth four years ago and not from tasting it. In my opinion, these guys DID set out to actively deceive the public. That record will speak for itself.

Chuck, in a previous post extolling the virtues of the current rye explosion you mentioned all of the brands coming out of Indianna and credited "a creepy little outfit like Templeton" for being the first to do so. Now they are the first to "out themselves" as selling flavored whiskey that is not labeled as such. Such pioneers!

The "straight" designation has never been more important to me to see than it is now.

Chuck - Not sure why you think flavoring is allowed in whiskey labeled as "Bourbon" rather than "Straight Bourbon." I just re-checked the regs on the TTB site: http://ttb.gov/spirits/bam/chapter7.pdf in case something had changed when I wasn't looking, but it is unchanged and no flavorings are allowed in Bourbon, in addition to the Straight editions as you noted in your article. But, yes, additions are allowed for "Rye Whiskey" "Malt Whisky" etc. "Bourbon," "Scotch" and the various Straight whiskies are the only ones where no additions are allowed.

Your link is to one of TTB's helpful guides, not to the regulations themselves. I never look at the guides because only the regulations have the force of law. If you can show me where I'm wrong in the regs, I will gladly look at it and issue a correction if necessary. Like you, I told people they were wrong when they told me about this until I looked closely at it myself.

The guide you referenced is wrong in one very obvious way. It says that the difference between additives that change the class and those that don't is their harmlessness. That's absurd on its face since harmful additives would not be permitted under any circumstances.

The chart says no additives are permitted in scotch, which everyone knows is wrong. Spirit caramel is routinely used in scotch to make the color consistent.

As for your specific contention, there is no precedent for treating 'bourbon whisky' differently than 'rye whisky' or any other named type. The relevant regs are quoted verbatim in the post above.

Whenever someone questions me on matters pertaining to the rules, I go back and check to see if I might have missed something. As far as I can tell, the guide disagrees with the regs therefore the guide is wrong.

That guide is what we all use in the industry to guide us and which are used by the label and formula approval specialists at the TTB. There are a lot more specifics in the guide than in the regs themselves - one can only imagine it is a cumulation of decisions made by the TTB (ATF) over the years. But you're correct in your quoting of that reg. Right above that exception is the reg itself - which is vague and all encompassing. However, it states that if additives are not customary in trade usage for the particular class and type, they're prohibited. Perhaps that's where "Bourbon" comes in - and the Beverage Alcohol Manual states there can be no additives in bourbon, because it is not customary? (2) There may be added to any class or type of distilled spirits, without changing the class or type thereof, (i) such harmless coloring, flavoring, or blending materials as are an essential component part of the particular class or type of distilled spirits to which added, and (ii) harmless coloring, flavoring, or blending materials such as caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Administrator, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 21⁄2 percent by volume of the finished product.

You are correct about how the BAM is used but may be giving TTB too much credit when you suppose how it was created. Your case is well made, but even using the 'customarily employed' standard, I don't see any case for treating bourbon whiskey and rye whiskey differently.

This all got started because Templeton admitted that it is adding flavoring to its rye whiskey as permitted under this rule, so that was the case in point and the BAM is on board with that. I extrapolated to bourbon because I can't see anywhere that bourbon is singled out for special treatment, as opposed to rye whiskey, wheat whiskey, etc. This sort of ambiguity is what is so frustrating about TTB, but I have the luxury of speculation because I'm not trying to get any COLAs approved.

The Scotch prohibition on coloring and additives indicated by the BAM table seems more easily read as an agency determination that such additives will not be considered "customary" for this rule, against the background requirement that non-"customary" additives must be disclosed. On that reading, Scotch would simply need to disclose coloring, as I understand is the case in some countries. Just because the Scotch producers don't comply with that reading and the TTB does not enforce it does not mean that this is not the effect of the regulations and agency actions in place. The Templeton case demonstrates that.

Having read through BAM chapter 7 and other documents linked on bourbontruth.com's post I am also persuaded that bourbon (straight or not) does not allow flavoring or caramel, since this is not considered established practice. It may be - and you Chuck will know better than most - that historically bourbon was considered superior to rye or wheat whisky, etc., therefore the raised standards.

It seems that most whiskies do not require a lab analysis for COLA approval, so it's not clear to me how one reinforces the rules (which is another matter altogether).

When we try to break this down, we get to 'maybe' and 'perhaps' pretty quickly, don't we? There is no lack of ambiguity. I can't, however, see where there can be any 'established practice' with regard to something so rarely done.

When you are making anonymous cowards like the one on September 16, 2014 at 3:31 PM you know that you are onto the truth, and it's making people with vested interests in deceiving the whiskey buying public mad. Keep up the great work my friend!

Chuck, I agree with you there would seem no warrant to distinguish between non-straight bourbon and non-straight rye, but Lucy Farber is correct that the section being discussed presupposes customary trade usage. I have some difficulty thinking that there is such industry custom, given that until recently, no bourbon that wasn't straight was in the market.

Perhaps, though, Templeton is going back to the 1930's: maybe in that period, when young (non-straight) bourbon and rye were marketed, producers were added flavor to it. If not, it seems hard to understand how a custom arose. I suppose you could argue, if there is no precedent either way, Templeton can start the custom - maybe that is their argument.

One interesting legal point is, the exception in sub (3) for straight whiskey clearly excludes a blend of straight rye whiskeys or a blend of straight bourbon whiskeys. The reason is, as you noted, "straight whisky" has a technical meaning under the SOI as including different producers' distillates of the same class and type provided all are made in the same state.

Thus, arguably, a blend of straight bourbon, being, say, a combination of Indiana and Kentucky bourbon, isn't excluded by sub (3) and can be flavoured without changing the class and type. This seems contemplated by 5.22 as well which, in the paragraph dealing with a blend of straight whiskey, refers to 5.23 in this regard. The reason is, there is a precedent clearly that blends of straight whiskey were sometimes treated with a blending agent. Melrose's whiskeys of this type were (I have a company booklet from the early 40's that states this).

With the whiskey shortage, NDPs and Potemkins should be looking at this area, except I gather they would need to state on the label that their product is "A blend of straight bourbon whiskeys", or ditto for rye. (Which, in the current marketplace, seems no major burden).

example: label: Red Stag Kentucky Straight Bourbon Whiskey Infused with Natural Flavors, COLA: class/Type: Whiskey Specialties.-------------------------------The customer doesn't have the luxury of seeing the COLA, so they are duped into thinking they are buying BOURBON.

Because the TTB has allowed the word Bourbon (straight or otherwise)to be used on a label (and not so required that the label also say "Not Bourbon, as required on the actual COLA", the scam will continue.

Example: Real Label : Mercedes. Contents and process: Made in a Mercedes Factory with Mercedes parts and Mercedes labor.

The fact that these "fake Bourbons" utilize some or all of any given product or process that is the same as "Bourbon" doesn't make it Bourbon, as clearly defined on the COLA. The problem is, the TTB allows distillers to use the term Bourbon (straight or otherwise) when clearly it is not, because it didn't remain bourbon, until the end bottling.

Scam Bourbon should not be confused with what "would have been Bourbon" had they actually bottled it immediately after it is aged in New Charred American Oak barrels for X years (made in USA / 51% min corn, etc). Instead the TTB is allowing a Segment of the "Bourbon Process" to be hijacked for marketing purposesby allowing artificial flavors to be added to a product that was to be completely and totally defined by the natural non adulterated flavors of the ENTIRE PROCESS.

It is absurd that the TTB would require that the COLA define the product, and then let the actual label "which is supposed to be the tool that allows the buying public to know what they are supposedly buying" be deceptive.

I'm going to go out for dinner tonight and buy a steak. Lets hope the restaurant doesn't list it as steak on the menu, charge me for steak, then serve me a hamburger beef/fat blend, because it used to be steak of some unknown flavor and quality before they mixed it with other things.

The laws were passed to define the end flavor characteristics of Bourbon, I very much doubt they intended that at some point a distillery would be selling Whipped Cream Bourbon.

What's next : Vodka Flavored Straight Bourbon? First you distill 51% corn to 159 proof, store it for 2 years in an Charred New oak barrel, pull it out, re-distill it to 190 proof and label it Bourbon, with Vodka Flavor (or lack thereof) ?

Gillman, I regard the BAM as an example of the sloppiness we have come to expect from TTB. As for blends of straight bourbons and the like, anything with 'blend' in the class permits coloring and flavoring. Someone who needs to call their product 'a blend of straight bourbons' because the components weren't all distilled in the same state would do well to add "no coloring or flavoring added" to the label, assuming that's the case.

I have a report from a correspondent who asked the TTB about the conflict between the BAM and the CFR with regard to flavoring in bourbon (non-straight). The TTB agreed there is a conflict, will try determine what's right, and will let him know when they figure it out.

So, Templeton knew enough of the regulations to add flavorings (something I'd never heard of, here or elsewhere), yet claim to know not enough of the regulations in regards to labeling. Peculiar, to me.

Bourbon whisky can't have coloring, flavoring, or blending materials because 27 CFR 5.23(a)(2) allows the use of such materials up to 2 ½ percent only if “customarily employed therein in accordance with established trade usage.” TTB’s interpretation of this is that Bourbon whisky does not customarily include such usage (straight or otherwise).

The formulation office would not see a formula for Bourbon whiskey as it is not required. The BAM states that harmless coloring flavoring and blending material (HCFBM) is not allowed to be added to Bourbon whiskey. Caramel color would fit within HCFBM. (I did check the table in the BAM, and it clearly indicates that no HCFBM may be added to Bourbon whisky or Straight Bourbon whisky.)

So, technically, the BAM is not contradictory to the regulation at 27 CFR 5.23(a)(2) … nor to the standard of identity for the class of whisky and several types in the regulations at 27 CFR 5.22(b). The answer to the question is that you may not add caramel or caramel coloring or flavoring to Bourbon.

And so one must infer the case with non-straight rye whiskey is different. Possibly this is due to the history of flavouring straight rye with a blending agent a la Melrose, and perhaps too there are 1930's precedents for non-straight rye. Also, one thinks of the cordial rock and rye, not the same thing exactly, but it is an example that young rye historically was gussied up so to speak.

This whole area probably has limited importance since I can't imagine non-straight rye will become a major presence in the market.

Is it definite? It doesn't get more definite than an official statement from TTB. As for export, that mostly depends on the rules and enforcement in the jurisdiction where sold, but you can be pretty confident that the international versions of the major U.S. brands have the same integrity as they do in the U.S.

Why is Hudson Baby Bourbon not Bourbon? It is 1. Made in America 2. Made from at least 51% corn 3. Distilled to abv no higher than 80% 4. Matured in new charred oak casks 5. Barreled at 57% abv. This is bourbon

Chuck, thank you for the great info. I'm happy to hear that the TTB finally took a stand on their contradictory rulings. Is there a link to the official statement from the TTB explaining that flavoring may not be added to bourbon? Is it on their website?

Thanks so much for this blog page! And kudos also to Google for making it the #1 ranked result for a search on "bourbon additives". I've been doing a fair amount of research on liquor additives and I finally found a detailed discussion hashing (pun not intended but appreciated) it out, with more hyperlinks than even an obsessive-compulsive like myself would need...

I especially appreciate that the blog author is willing to respond to the various comments. This lends richness to the page and is, unfortunately, all too rare on the Web.